SC agrees to hear plea against gay sex ban, refers it to larger bench

Top court had reinstated ban in 2013, saying responsibility for changing law rested with lawmakers not courts.

Members of LGBT community and supporters attend the 5th Delhi Queer Pride parade in New Delhi. (Photo: AFP)

Top court had reinstated ban in 2013, saying responsibility for changing law rested with lawmakers not courts.

New Delhi:

The Supreme Court on Tuesday referred to a five-judge bench an appeal against a colonial-era ban on gay sex, a case closely watched by rights campaigners in India.

Gay rights activists see this has a positive move as the top court did not dismiss their curative petition -- the last judicial resort available for the redressal of grievances in court.

The Supreme Court's three most senior judges reviewed a 2013 decision to reimpose the ban contained in the criminal code which enables the jailing of homosexuals.

A five-judge Constitution Bench of the Supreme Court will now hear curative petitions seeking the re-examination of its verdict criminalising sexual activity between same sex consenting adults under section 377 of IPC.

A three-judge bench comprising Chief Justice T S Thakur and Justices A R Dave and J S Khehar said since important issues concerning the Constitution were involved in the matter, it would be appropriate to refer the issue to a five-judge Constitution bench.

The bench said that the larger bench would be constituted in the future.

The bench was told there were eight curative petitions seeking re-examination of the order on the review petition and the December 11, 2013 judgement by which the Delhi High Court verdict de-criminalising section 377 (unnatural sexual offences) of the IPC was set aside.

The bench was also informed that churches of northern India and the All India Muslim Personal Law Board were against decriminalising homosexuality.

“Section 377 (of the criminal code) violates the fundamental right to privacy, equality, dignity and non-discrimination,” says Tripti Tandon, lawyer for the Naz Foundation, one of several gay-rights groups and campaigners which filed the review.

The appeal is the latest chapter in a long-running legal saga between India's social and religious conservatives and the gay community over the law passed by the British in the 1860s.

Six years ago, the Delhi High Court effectively legalised gay sex in a landmark ruling that said the ban infringed on the fundamental rights of Indians.

That 2009 ruling emboldened the still largely closeted gay community which started to campaign publicly against widespread discrimination and violence.

But the Supreme Court reinstated the ban four years later in 2013, saying responsibility for changing the law rested with lawmakers not the courts.

Members of the gay community and campaigners have now lodged the last-ditch curative petition -- or appeal -- to the Supreme Court to have the judgement reviewed and overturned.

Prosecutions for gay sex are rare, but activists say corrupt police use the reimposed law to harass and threaten homosexuals. The gay community says criminalising homosexuality makes its members vulnerable to blackmail.

Gay sex has long been a taboo subject in conservative India, where homophobic tendencies abound and some still regard being gay as a mental illness.

Congress Member of Parliament Shashi Tharoor’s attempt to introduce a private member's bill into Parliament to decriminalise gay sex failed in December.